What Do State Marijuana Laws Mean for Employers’ Drug Policies?

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Changes in marijuana laws are sweeping the nation, state by state: Twenty states, plus the District of Columbia, have passed laws allowing marijuana to be used for medical reasons, and nine more are considering them.

Washington state and Colorado have legalized pot for adult recreational purposes, with 14 others weighing that idea. D.C. replaced the jail-time penalty for possessing small amounts with a fine.

By the end of this year, more than half of states are expected to have made marijuana use legal in some form or fashion.

“It’s a very vexing issue for employers who, for years, have tried to create drug-free workplaces and now must confront the reality of having ‘legal’ drug users on premises,” says Chris Geehern, executive vice president of the
Associated Industries of Massachusetts, a trade group of 5,000 employers in a state that allows medical marijuana.

As an increasing number of Americans take a more lenient attitude toward marijuana, many employers appear to be standing behind their drug-testing policies. But the new state laws are causing confusion among employees and job applicants and giving HR professionals headaches about what they can and cannot enforce. Some also worry that the state laws may make it more difficult to find future workers who meet their organizations’ drug-testing criteria.

“As long as it’s federally illegal, we are not going to change our policy,” says Alicia Miller, SPHR, HR director at
Aspen Valley Hospital in Aspen, Colo. “We’re a health care organization, and we’re taking care of people, so we don’t want to have impaired employees.”

Changing Attitudes

During the “war on drugs” in the 1980s, public opinion turned against marijuana. But a Gallup poll last year showed that, for the first time, a majority of Americans believe marijuana should be legal.

About 9 percent of the full-time, adult American workforce used illegal drugs at least once in the previous month, according to the results of the federal 2012
National Survey on Drug Use and Health. For young adults, the numbers are higher—double that for marijuana alone.

In areas where recreational marijuana is legal, such as Denver, pot smoke drifts from sidewalk cafes and between office buildings where workers take breaks. In San Jose, Calif., Sarah Swanson, PHR, former HR manager at
ZEDventures, says her friends in the video gaming industry claim that they wouldn’t be able to hire anyone if their companies tested for marijuana, which is legal in the state for medical use.

ZEDventures, a technology consulting company, doesn’t test employees unless they work for a client who requires it. While in her position there, Swanson told an experienced candidate that he would have to pass a drug test.

The man replied, “Everything will be fine because I have a weed card”—an ID card stating he can use marijuana for medical purposes—Swanson recalls.

However, the client didn’t see it that way. The applicant was astounded when he didn’t get the job.

In Aberdeen, Wash., medical marijuana dispensaries are doing business just a few miles from
Great NorthWest Federal Credit Union. (The first recreational marijuana stores are expected to open this summer.) At first, the credit union’s leaders were confused about how the new laws affect employers. However, after consulting with lawyers, they decided to keep their drug-free workplace policy and random-drug-testing program to help protect the employer’s image in the community.

“We just wanted clean, sober employees as a representative of the credit union,” says Linda Vandiver, vice president of HR.

“The last thing we need in an increasingly global, competitive economy is more stoned workers and more stoned students,” de Bernardo says. “When it’s more accessible, and the sanction of government is lessened, it has an impact on society. What has an impact on society has an impact on the workplace.”

Curtis Graves, SPHR, staff attorney at the
Mountain States Employers Council, a nonprofit with 3,000 members, says he hasn’t heard of an increase in Colorado workers’ impairment on the job. Marijuana, he points out, hasn’t been very hard to find for decades. “Most people who are inclined to smoke it probably already are,” he says.

Paul Armentano, deputy director for
NORML, a Washington, D.C., group that lobbies for marijuana legalization, says he hopes the state laws will convince employers to “rethink their workplace drug-testing policies.” But so far, he concedes, that hasn’t happened.

The Legal Landscape

To date, the courts have weighed in on the side of employers’ right to test. After all, federal law still outlaws marijuana possession and use.

“Our advice to employees is ‘Stay the course,’ ” de Bernardo says. “Marijuana is illegal. Employers have a right—and I would say a duty—to prevent marijuana use in the workplace.”

But employers and marijuana advocates alike are closely watching a court case in Colorado.

Colorado’s Supreme Court is expected to rule this fall on the appeal of Brandon Coats, who lost his job at Dish Network after a saliva test showed he had used marijuana. The state court of appeals had ruled in favor of his employer.

Coats was one of the top-performing service representatives and wasn’t lighting up on the job, says his attorney, Michael D. Evans. Coats, a quadriplegic, had a doctor’s referral for medical marijuana, which helped him manage pain and avoid embarrassing spasms.

Evans and Coats argue that drug tests that show the presence of THC (marijuana’s active ingredient) are unfair because they don’t prove that a worker was impaired on the job.

“Companies who are firing people for the mere presence of THC are setting themselves up for a lot of lawsuits,” Evans says.

Armentano believes that the courts will eventually strike down warrantless testing by employers. Marijuana, unlike other substances, can stay in a person’s system for 30 days or more. (How long workers would test positive after using marijuana depends on how often they smoke, how much they smoke and their metabolism.)

That means a person could fail a drug test because of marijuana used days or weeks ago, but not be impaired at work—which is why Armentano believes that testing discriminates against workers for what they do on personal time.

“We don’t sanction employees who show up to work sober on Monday who went to happy hour Friday night,” Armentano says. “There’s no reason to single out this cohort of employees and sanction them for their off-the-job activity.”

Which Test Is Best?

There are four main types of marijuana tests:

Urine. Urine tests are most commonly used by employers and can show marijuana use several days afterward. About 85 percent of the 5 million drug tests conducted each year by Quest Diagnostics are urine tests. They are required by federal regulations for employees in safety-sensitive jobs but don’t indicate whether a person was under the influence at the moment he or she was tested.

Blood. While blood tests are the most invasive and expensive of available tests, they offer a better measure of whether a person is currently under the influence. However, testing must be done right away if drug use is suspected because blood levels can drop quickly. Blood tests are used mostly after accidents.

Hair. Hair testing can detect marijuana use for the longest amount of time afterward—weeks or months after smoking. But it often doesn’t show use in the previous few days.

Saliva. Saliva tests can show use for a day or two but are not yet commonplace.

Arizona and Delaware could pose interesting legal challenges in the future because state laws there ban employers from firing workers for off-duty use of marijuana.

Even in other states, Denver attorney Danielle Urban says, some employers are reluctant to interfere in their employees’ personal lives.

Employers also face a legal reality that hasn’t changed with state pot laws: the risk of liability if a high worker were involved in a vehicle or workplace accident. Some companies have considered treating marijuana like prescription drugs so that, when a medical review officer looks at a positive drug test and ascertains that the person had a referral from a doctor, the result is reported as negative. Graves warns that that leaves a paper trail that could be used against the company in court if the worker causes an accident.

Pot and Performance

Marijuana advocates, including Armentano, argue that off-duty marijuana use poses no workplace safety risk unless smokers light up immediately before or during work.

But Marilyn A. Huestis, a senior investigator at the National Institutes of Health
National Institute on Drug Abuse, says there’s plenty of evidence that marijuana use affects performance even days later.

“There is absolutely no doubt cannabis affects a person’s ability to drive safely,” Huestis says. Marijuana reduces peripheral vision and the ability to stay in one’s lane, studies show. You “double your risk for an accident if you have any measureable THC in your blood.”

At higher levels of THC in the blood, the risk is 6.6 times greater, she says. Those figures are based on blood tests taken after accidents. Controlled laboratory experiments indicate that people’s driving skills remain impaired two to three weeks after they smoke marijuana. For chronic users, cognitive deficits are apparent at least seven days after use. “One of the strongest effects of cannabis is on divided attention and executive function—the ability to take in a lot of information and to evaluate it,” she says.

Companies have strong reason to keep their drug-testing policies in place, according to Huestis: “There’s good evidence of the effects drugs have on safety, absenteeism, medical costs and productivity.”

An effective drug-testing program can make supervisors’ jobs a lot easier, de Bernardo says: “Those who engage in illicit drug use are one-third less productive.”

Tests Deter Use

Employer drug-testing policies are a deterrent to marijuana use, according to data comparing self-reported pot smokers at companies with and without testing, says Barry Sample, director of science and technology at
Quest Diagnostics, which provides drug tests for employees in the U.S. and other countries.

Self-Reported Marijuana Use
Over the Previous 30 Days

Percentage of workers at employers with drug‑testing programs

5.2%

Percentage of workers at employers without drug-testing programs

9.7%

Source: Quest Diagnostics analysis of data from the National Survey on Drug Use and Health, 2002-11, U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration.

In a 2011 Quest analysis of federal data, 5.2 percent of workers in companies with drug testing said they used marijuana, compared with 9.7 percent at businesses without testing.

Sample, whose firm conducts more than 5 million drug tests each year for employers, said he hasn’t seen any companies drop marijuana testing, though some are questioning their policies now.

In Colorado, 1 in 5 employers have implemented more-stringent drug policies since 2012 when recreational marijuana was legalized, according to a recent survey of 334 employers by the Mountain States Employers Council. Fifty-three percent of testing employers said they would fire a worker for a first-time positive test.

Employers’ drug-testing policies vary. Some test pre-employment, others just after accidents and still others when there’s a suspicion of impairment. Others test randomly or do a combination of all of these methods. While some have zero-tolerance rules, others offer workers who fail a drug test the chance to go into treatment.

Aspen Valley Hospital’s 425 workers are tested before they are hired and after any accidents. The hospital has had only a few positive tests and gives employees a second chance if they go through a treatment program, which generally involves drug-testing after rehab, Miller says.

Despite the changes in state laws, federal regulations still require random testing for about 11 million workers who are in safety-sensitive jobs, including airline pilots, bus drivers, pipeline workers and truck drivers.

Sample has not seen an increase in positive tests since the state laws changed, but it may be too early to tell. In 2012, 63 out of every 10,000 drug tests conducted under federal requirements came back positive for marijuana. For private employers, the number was much higher—395 out of every 10,000 who took urine tests. Figures are still higher for workers who were tested after accidents.

Random testing has slipped in popularity because of the cost, Urban says. Some industries that rely on young transient talent, such as fast food, would be hard-pressed to keep positions filled if they conducted random tests.

Employers With Policies Recognizing Medical Marijuana

Yes

12%

No, but plan to

10%

No, and no plans to at this time

79%

Source: HireRight’s 2013 Employment Screening Benchmark Report. Chart does not total 100 percent due to rounding.

Plan Ahead

With more states considering liberalizing marijuana laws, employers can learn from those in states that were early adopters. HR professionals who have been there advise the following:

Review the company’s drug-related policies. This helps ensure that HR can clearly explain to employees what is expected of them.

Consider basing policies on expected job results. “Treat it as a performance issue,” says Geehern of Associated Industries of Massachusetts.

Remind workers that they are subject to being fired. Regardless of state law, employers need to stick to the consequences or disciplinary procedures they choose if employees violate a company ban.

Be consistent. Apply the policy evenly to everyone, Miller recommends, even if it means firing a valued employee. Despite Aspen’s reputation as a party town, she says, she hasn’t gotten any pushback from workers.

Work with employees. Team up with employees who use marijuana for medical reasons to find other treatments or allow them to take leave, Urban suggests.

Train managers. In addition to conducting random and pre-employment drug tests, Vandiver says her credit union brings its drug-screening company in to train supervisors to recognize signs of drug use in employees.

She hasn’t seen local companies soften their policies on marijuana yet, but she wonders what the future holds when today’s high-school students enter the workforce.

“They have a different perspective, that it’s legal and they can smoke pot if they want to,” Vandiver says. “It could be different as generations grow up in a society that says it’s OK.”

Tamara Lytle is a freelance writer based in the Washington, D.C., area.